106.9 Buy America Requirement
Federal-aid projects requiring steel or iron products that are permanently incorporated into the contract work are to comply with the Buy America Requirements. Sec 106.9 provides information regarding the Buy America requirement. Certain projects may not allow the minor usage clause to be invoked. The Resident Engineer should confirm the scope of this specification on any particular project.
When does Buy America apply to manufactured items?
FHWA's guidance, Buy America policy response Control # HCC-97-070, states “A review of the Congressional Record pages pertaining to this legislation indicate that Congress' primary concern for Section 165 was to protect the domestic steel industry.” Therefore, the determination on when Buy America applies to a manufactured item should keep that in consideration.
| FHWA's Buy America Q & A for Federal-Aid Program |
The intent is not to create a loophole for products, either. Thus, the term “predominately steel or iron” is used as what qualifies for Buy America. The example given by FHWA in the "policy response" is that of a bridge bearing. It is manufactured and “predominately” steel. Therefore, do not claim it has some rubber gaskets or other minute non-steel components to bypass the Buy America requirement.
Determining the exact amount of steel and iron in a manufactured product is not practical. Additionally, determining the origin of each of the steel and iron components is not feasible. As a rule of thumb, any manufactured item that is composed of approximately 75% steel or iron is a threshold to begin considering Buy America application. Items such as metal cabinets and steel light poles would be predominantly steel and iron and would be subject to the Buy America guidelines. Most routine items such as traffic cameras, light fixtures, electrical components, etc. would contain minor amounts of steel and iron and therefore Buy America requirements do not apply. If you are unsure contact your liaison engineer for guidance.
As of March 1, 2021, the “Certificate of Materials Origins” form and supporting documentation required by Missouri Standard Specifications for Highway Construction, Section 106.9.3.2 for Category 2 Guardrail items, will not be required for suppliers that are members in good standing with AASHTO’s National Transportation Product Evaluation Program (NTPEP). An approved list of these suppliers is available in the Materials Qualified Lists – Qualified NTPEP Audited Guardrail Fabricators FS-1040 Table 11. Although the supplier does not have to submit the material of origin form, this form should be kept on file by the supplier and available upon request.
Category 2 Guardrail items accepted in this allowance shall be designated on the inspection reports as “NTPEP Audited Source, No Certification Required” in the approved inspection report format.
